Zada v The Deputy Public Prosecutor of the Court of Trento, Italy

For the purposes of the double-jeopardy bar under the Extradition Act 2003, the relevant comparison is between the conduct constituting the extradition offence and the conduct already prosecuted, not the whole of an international criminal enterprise. A coordinated investigation, common participants, similar methods and overlapping dates do not establish that prosecutions concern the same or substantially the same facts. The requested person bears the burden of proving abuse of process on the balance of probabilities. The assessment is fact-specific, and a stay remains an exceptional remedy. Where distinct states prosecute distinct criminality occurring in, or affecting, their respective territories, sequential prosecutions are not inherently unfair. Any issue concerning totality or credit for an earlier sentence is ordinarily a matter for the later sentencing court, not a reason to refuse extradition.

The appellant had been convicted and sentenced in France for facilitating illegal immigration as part of an organised group. Italy subsequently sought his extradition to enforce an Italian sentence imposed in his absence for criminal association and facilitating illegal immigration. The French and Italian investigations concerned related international people-smuggling activity, and the appellant acted as a banker for different sub-groups.

The Westminster Magistrates’ Court ordered extradition and rejected arguments based on double jeopardy and delay. On appeal under section 26 of the Extradition Act 2003, the central issue was whether the Italian proceedings were founded on the same or substantially the same facts as the French prosecution, such that a domestic prosecution would constitute an abuse of process under section 12.

1. The appeal was dismissed. The appellant failed to show that the Italian prosecution concerned conduct already prosecuted and punished in France.

2. Under section 12 of the Extradition Act 2003, the court must assume that the extradition offence is an offence under English law and ask whether the requested person would be entitled to a discharge under the English rules concerning previous acquittal or conviction. This includes the exceptional abuse-of-process jurisdiction described in Fofana and Belise v Deputy Prosecutor Thubin, Tribunal de Grande Instance de Meaux, France [2006] EWHC 744 (Admin).

3. The requested person bears the burden of establishing abuse on the balance of probabilities. The question is necessarily fact-specific. The existence of a wider international network, a coordinated investigation, overlapping dates, common participants and similar money-transfer methods does not by itself prove that the prosecutions concern the same or substantially the same conduct.

4. The relevant conduct was the conduct constituting the Italian extradition offence. The evidence supported the finding that France prosecuted criminality occurring in, or affecting, France, while Italy prosecuted criminality occurring in, or affecting, Italy. The French references to events and persons in Italy provided international context and did not establish that France had prosecuted the appellant for all his wider criminality.

5. There was no evidence that France had jurisdiction over, or agreed to prosecute, the appellant’s conduct affecting Italy. Nor was there evidence of an agreement between the states that France would prosecute the whole criminal enterprise. Distinct sub-groups and conspiracies could exist within the wider activity.

6. It was not inherently unfair for an international criminal to face prosecution in more than one state where there was no double jeopardy and no agreement for a single prosecution. Any question whether the later sentence should take account of an earlier sentence was a matter for the sentencing court under the principle of totality, not a ground for refusing extradition.

• High Court (Administrative Court): the appeal against the extradition order was dismissed.
• Westminster Magistrates’ Court: District Judge Ashworth ordered extradition to Italy on 14 September 2016.